BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 568|
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THIRD READING
Bill No: AB 568
Author: Muratsuchi (D)
Amended: As introduced
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/11/13
AYES: Hancock, Anderson, Block, De Le�n, Knight, Liu, Steinberg
ASSEMBLY FLOOR : 75-0, 5/20/13 - See last page for vote
SUBJECT : Criminal procedure: testimony of law enforcement
officers
SOURCE : Los Angeles District Attorneys Office
DIGEST : This bill clarifies the definition of a law
enforcement officer for purposes of introducing hearsay
statements at a preliminary hearing.
ANALYSIS :
Existing law:
1. States that in order to protect victims and witnesses in
criminal cases, hearsay evidence shall be admissible at
preliminary hearings, as prescribed by the Legislature or by
the people through the initiative process.
2. Defines "hearsay evidence" as "evidence of a statement that
was made other than by a witness while testifying at the
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hearing and that is offered to prove the truth of the matter
stated."
3. Provides that, except as provided by law, hearsay evidence
is inadmissible.
4. States that the prohibition against offering hearsay
testimony does not apply at a preliminary hearing, as
specified.
5. Provides that a finding of probable cause at a preliminary
hearing may be based on hearsay statements related by a law
enforcement officer.
This bill provides that for the purposes of a hearsay
preliminary hearing, a law enforcement officer is any officer or
agent employed by a federal, state, or local government agency
to whom all the following apply:
1. Has either five years of law enforcement experience or who
has completed a training course certified by the Commission
on Peace Officer Standards and Training (POST) that includes
training in the investigation and reporting of cases and
testifying at preliminary hearing.
2. Whose primary responsibility is the enforcement of any law,
the detection and apprehension of persons who have violated
any law, or the investigation and preparation for
prosecutions of cases involving violation of laws.
Background
Qualifications and definition of law enforcement officers .
Penal Code (PEN) Section 872(b) contains experience and training
requirements in order for an investigating officer to be able to
offer hearsay evidence at the preliminary hearing. The section
requires that an officer have at least five years of law
enforcement experience or have completed a course certified by
POST which covers the investigating and reporting of criminal
cases, and testifying at preliminary hearings. (Whitman v.
Superior Court, supra, 54 Cal.3d at p. 1073)
PEN Section 872 established the training or experience required
for testifying officers, but it did not provide a definition of
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what "law enforcement officers" qualify to testify. The Court
of Appeal decisions that have considered the issue have held
that PEN Section 872(b) is not limited to traditional peace
officers authorized to carry weapons and to make arrests.
Rather, the intent is to hear from an officer who has knowledge
of the relevant law and facts such that he/she can provide
meaningful testimony at a preliminary hearing. As such, an
arson investigator and a Franchise Tax Board investigator have
both qualified under the statute. (Martin v. Superior Court
(1991) 230 Cal.App.3d 1192 (arson investigator); and Sims v.
Superior Court (1993) 18 Cal.App.4th 463 (tax board
investigator))
Proposition 115 (Prop 115) . Prop 115, which became effective
June 6, 1990, added both constitutional and statutory language
to permit a probable cause determination at a preliminary
hearing in felony prosecutions to be based on hearsay evidence
presented by a qualified investigative officer. Specifically,
Prop 115 added Section 30 to Article I of the California
Constitution which provides, that in order to protect victims
and witnesses in criminal cases, hearsay evidence shall be
admissible at preliminary hearings. Prop 115 also added
Evidence Code Section 1203.1 to provide a preliminary hearing
exception to the general requirement that a hearsay declarant be
made available for cross-examination. Prop 115 amended PEN
Section 872 to provide that notwithstanding the hearsay rule,
the finding of probable cause can be based, entirely or in part,
on the sworn testimony of a law enforcement officer relating the
out-of-court statements of declarants which are offered for the
truth of the matter asserted. And Prop 115 amended PEN Section
866(a) to give the magistrate discretion to limit the
defendant's right to call witnesses on his/her own behalf. (See
Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070-1071)
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/12/13)
Los Angeles District Attorney's Office (source)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
Judicial Council of California
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Los Angeles Police Protective League
Riverside Sheriffs' Association
OPPOSITION : (Verified 6/12/13)
California Attorneys for Criminal Justice
California Public Defenders Association
ARGUMENTS IN SUPPORT : According to the Los Angeles District
Attorney's Office, PEN Section 872, subdivision (b), provides
that a finding of probable cause at a preliminary hearing may be
based upon hearsay statements related by a law enforcement
officer. However, the section does not define "law enforcement
officer" for the purposes of the statute. This bill provides a
statutory guideline for the admission of hearsay statements via
law enforcement officers, other than traditional peace officers,
that should reduce litigation on the question of whether a law
enforcement officer qualifies under Section 872(b).
ARGUMENTS IN OPPOSITION : According to the California Public
Defenders Association (CPDA):
AB 568 proposes to expand the hearsay exception at preliminary
hearings. This would be detrimental to our clients because it
would further curtail the defendant's 6th amendment right to
cross examination.
At the preliminary hearing, the magistrate looks to draw
inferences that point to the defendant's guilt. Those
inferences must be reasonable and based on credible evidence.
The defense is in a better position to challenge the
credibility of that inference supporting evidence when the
defense has the opportunity to examine the percipient
witnesses.
Proposition 115 already significantly diminished that
fundamental right, and CPDA opposes any provision that expands
the shield between the defense and the percipient witnesses.
ASSEMBLY FLOOR : 75-0, 5/20/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Ch�vez, Chesbro, Conway,
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Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Jones,
Levine, Linder, Lowenthal, Maienschein, Mansoor, Medina,
Melendez, Mitchell, Morrell, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, V. Manuel P�rez,
Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting,
Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, Yamada,
John A. P�rez
NO VOTE RECORDED: Holden, Jones-Sawyer, Logue, Vacancy, Vacancy
JG:k 6/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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